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Loni v Primier of Isabel Province [2015] SBHC 110; HCSI-CC 62 of 2014 (21 December 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona, PJ)

Civil Case No. 62 of 2014

BETWEEN:

FRANK LONI
Claimant
(Representing Ernest Kaezama Panisi's
descendants of Tanu Clan, Kia Isabel Province)

AND:

PRIMIER OF ISABEL PROVINCE
First Defendant
(on befalf of Isabel Provincial Assembly)

AND:

ATTORNEY-GENERAL
Second Defendant
(Representing the Commissioner of Lands and Registrar of Titles)

Date of Hearing: 23rd October 2015
Date of Ruling: 21st December 2015

Mr J. Keniapisia for the Claimant
Mrs M. Bird for the First Defendant

RULING ON APPLICATION FOR INTERLOCUTORY ORDERS

Faukona PJ: A claim for judicial review was filed on 4th March 2014. Later it was amended by further amended claim filed on 26th March 2015.

2. The Claimant is claiming ownership of Lot 18 in PN No. 071-001-17 situated at Allardyce Harbour, Kia region, Isabel Province. The land together with other plots of land were sold to the Colonial Government and was registered as LR 516, Lot 12 and 14 pre 1987.

3. The Claimant is the grandson of one named Rufus Rufu Panisi. Together with other lessors Mr Panisi sold LR 516 but through mistake because post 1987 two main sub-divisions were initiated with intention to create Lots 17 and 18 which were not completed, in terms of mutation process. The sub-divisions were intended to transfer Lot 17 to Isabel Province and Lot 18 to be retained by the Central Government.

4. In 1999 Lot 17 was accordingly transferred to the Isabel Province. At that time of the transaction Lot 18 was also transferred to the Province by mistake contrary to 1987 sub-divisions intentions. The initiated subdivisions were never brought to finality in terms of mutation process. As a result no two separate parcel numbers were allocated and registered which was contrary to two main initiated subdivisions.

5. The first Defendant admits the understanding between the first and second Defendants to subdivide the disputed land to create Lot 17 and 18, to the affect that Lot 17 be transferred to the first Defendant and Lot 18 to remain with the second Defendant. It also admits the mistake but cannot transfer the title to the Claimant as the perpetual estate title in PN-071-001-17 is held by it.

6. However, it would appear the argument advances by the Claimant premises on the "Standing Policy" of the Central Government in or around 1987, to return alienated lands back to original Solomon Islands tribal owners. The question whether that policy must be compulsorily implemented, and how effective was the policy remains an issue. However, the Claimant seems to be relying on legitimate expectation that the policy paper will be smoothly implemented by the first Defendant. In the current case the first Defendant had implied clearly its stand, that as a holder of perpetual estate title, cannot transfer that title to the Claimant.

7. Even if the title was held by the second Defendant, any transfer of the title very much depend on the holder. The policy is not an Act that legitimately conferred legal obligations upon the holder of title to transfer the title forthwith or as requested. Any act of transfer depends very much on the holder of the title and timing. It would appear, the policy will only be effective when the time comes for the holder to decide when to transfer the title to the original landowners. There is nothing legal to urge them comply with the policy. So it is a policy on paper where implementation depends on readiness and time. In my opinion the issue of ownership becomes a non-issue. Expectation of ownership is not subject to dispute, it is subjective to when it will be appropriate for the Province to effect transfer. It is the Province to make a decision at its own timing and pace. I think the policy paper is non-justiciable of which a Court of law cannot enforce.

8. The second issue is one of law raised by the first Defendant that the Claimant is statute barred under the provisions of the Limitation Act. The Counsel for the first Defendant refers particularly to section 9 (2) of the Act, which provide for no action shall be brought by, no arbitration shall be commence by any person to recover any land after expiration of twelve years from the date on which the cause of action accrues to him.

9. In 2012, the Claimant inquired about the land, thirteen (13) years after the perpetual estate title was transferred to the first Defendant. He then filed this claim in 2014 to review the determination to transfer the title. By then it was fifteen (15) years after the transfer.

10. Question to pause is, has the Claimant being barred from commencing this cause of action by virtue of S. 9 (2) of the Limitation Act. S. 9 (2) is clear that time of twelve years start to run from the date of which the Claimant was aware of the transfer. In this case the Claimant made inquiries in 2012 ad time started to run against him from then. Subsequently, he filed this cause of action in 2012. As far as this issue is concern the Claimant has an arguable case. That twelve years started to run from the date he first aware for the transfer which is in 2012. By filing this case two years after is an arguable case which is an issue to be tried.

Crown Proceedings Act:

11. On the issue of Section 18 of the Crown Proceedings Act, which forbids the granting of injunction against the Crown? S.16 of the Interpretation and General Provisions Act, a local authority includes Town Council or a Provincial Assembly. Normally these authorities are represented by the Attorney-General in civil causes of actions, but not in the restrictive sense. They have a choice. In any event a Provincial Government is an arm of the Central Government which formed and become part and partial of the organ of the government. Undoubtedly a Provincial Government is protected by Section 18 of the Crown Proceedings Act.

12. However, S.18 (a) authorises the Court in lieu thereof may make a declaratory order of the rights of the parties instead of grant of injunctions. The Counsel for the first Defendant who relies on this provision did not address the Court of the nature of declaratory orders as alternative from grant of any injunction. In the absence of such, the Court cannot resort to make declaratory orders of which it was not brought to its attention. As it appears this issue is subject to argument must therefore branded as arguable legal point.

13. Of the three issues, the issue of claim of ownership is more significant over the other two, and deserve to be rated as prevalent in the circumstance of this case. I say prevalent in the sense that determination of that issue alone has an overriding effect over the other two issues. Though the other two are legal issues, and are subject to argument at trial, the claim of ownership by the Claimant is from an expectation that the first Defendant would transfer the titled of the registered land to him. It is clear the first Defendant had implicated its stand that it will not transfer the title. As I have reinterred previously, the government policy relied on by the Claimant is not an Act to confer legal obligation upon the first Defendant to deliver the title. By implicating refusal, simply mean there is no serious arguable case to be heard at trial. Being as rated as an overriding issue, I must therefore find there is no serous arguable case to be heard at trial, though two minor legal ones are present, which in my view are not sufficient to change the course of event.

14. Having found there is no issue in this case, the balance of convenience therefore tilts towards the first Defendant. By the authority of the case Pentani V Attorney-General[1] His Lordship Apaniai J, as he was then, stated in the last sentence of paragraph 5,

"If no serious issue is disclosed, the application must be dismissed forthwith without having to consider the other issues"

15. I agree with this Lordship that is the law in this country. I must therefore then dismissed the application for injunctive restraining orders.

Orders:

1. Application for injunctive or interim restraining orders dismissed.

2. Cost of this application be paid by the Claimant to the first Defendant.

The Court.

^[1] (2014) SBHC 13; HC-SI CC 433 of 2013 (1October 2014)